QLD Children's Passports

[Cairnsdad]

I was wondering if anyone out there has any experience in getting passports for their children when they don't know where the ex is?
A couple of quick facts;

• Final orders have been in place since early 2015
• The orders are for 10 days with me and 4 days with mum per fortnight.
• Mum moved 1500 klms away in late 2015.
• The boys haven't heard from mum for over 12 months now and the last time I tried to contact her was September 2017 and her number was disco'd and she hasn't replied to emails for years so I am guessing that inbox isn't used anymore.
• She is estranged to her father (mother deceased) so the maternal grandfather can't/won't help.
• Boys are 7 & 11

Ok so now the questions........ I understand I might need to apply to the court to get a court order to get passports for my sons and that I need to have exhausted efforts to contact mum for permission prior.

• What is the levels of exhaustion normally required by the courts? Do I need to have pattern of trying to contact her via email or texts that go unreplied? Should I go to the length of hiring a PI to find her and ask her if I can contact her for permission?
• I am guessing it takes a while to go through court (everything does) but does anyone know roughly how long? I am not looking at travelling until early next year for a few weeks in the school holidays so I have 10 months basically.
• Without full consent or a court order, you may ask for your child’s application to be considered under the special circumstances set out in subsection 11(2) of the Australian Passports Act 2005 and section 10 of the Australian Passports Determination 2015. This is from the DFAT website and my assumption is they require similar evidence to the court before moving forward so therefore is it better to just get a court order first?

I would like to self represent to save money if possible and I am trying to get ahead of the curve in case I need to show months of attempting contact with mum.

Thanks in advance

CD

 

[Cairnsdad]

I forgot to add that I own a small business, a home here and all family lives in Australia so can show the court we will only be going for a holiday not fleeing.

 

[AllForHer]

Are the orders for shared parental responsibility?

 

[Cairnsdad]

Hi AFH,

My apologies I forgot to add that.

Yes they are

 

[AllForHer]

Okay, so you don't need a PI. All you need to really do is show that you've tried to contact her without success.

I think your first avenue should be applying for a passport under special circumstances prescribed is s 11 of the Australian Passports Act. Section 11 says the Minister can approve a passport 'if there is a person who has parental responsibility for the child and who has not consented to the child having an Australian travel document, but it is not possible to contact that person within a reasonable period'.

Concurrently, you should start the process for mediation because it can take a while. That will give you the s60I certificate to start proceedings if the special circumstance application is declined.

If you do have to file, you would be seeking location orders so the Court knows where mum is and can alert her to the proceedings, and also orders for the mother to do all things necessary for you to acquire a passport for the kids, as well as orders permitting you to travel with the kids outside the Commonwealth of Australia.

I can't guess how long the process might take. It really depends whether or not mum actually participates. Best to get started early though.

 

[Cairnsdad]

Thank you again AllForHer,

I guess my only concern about the applying under section 11 was my understanding that it was primarily for the Minister to approve a passport in circumstances that are more urgent such as for a child to visit a sick relative o/s or other essential travel. If I was unsuccessful going that way then I assume it would need to be disclosed to the Judge?
I never ever thought about mediation so I'm glad you mentioned it. Due to the fact that I know her last known contact details are no longer relevant do I use them in the mediation application as they are the last details she gave me knowing they won't work and will obviously delay the process?
All I know of mum now is that she no longer resides where she was when she moved south and she is on Centrelink as thats where CS comes from each fortnight into the boys bank account.

Thanks again

 

[AllForHer]

So, section 11(2)(a) of the Australian Passports Act (available here :AUSTRALIAN PASSPORTS ACT 2005 - SECT 11 Reasons relating to child without parental consent or court order for travel) permits the Minister to grant an application for a passport 'if circumstances specified in a Minister's determination as special circumstances exist'.

The Minister's determination of relevance here is the Australian Passports Determination 2015 (available here: Australian Passports Determination 2015). The special circumstances are under s 10(3) of that Determination, which includes:

(a) if the application is made by or on behalf of the child—neither the applicant nor the Minister has been able to contact the non‑consenting person for a reasonable period.​

So, in short, the Minister can approve a passport application in circumstances where the non-consenting person has been uncontactable for a reasonable period (emergency immaterial).

If you are unsuccessful, it would probably be prudent to include it in your affidavit, if not only to show reason why you are being forced to seek permission from the Court.

Re: mediation, your best bet is to contact Legal Aid about organising mediation as they can use their own resources to find out where mum is living and get in touch with her on your behalf. If they can't find her either, though, you may need a location order from the Court.

 

[AllForHer]

My apologies, I did quote the wrong section of the Australian Passports Act initially, but see the above for clarification.

 

[Cairnsdad]

Thank you again AFH.

It seems the only x factor now moving forward is what is deemed as a 'reasonable time' under the Act for not being able to contact the mum for the Minister to consider which I guess I will find out soon enough. I am assuming that if they manage to contact mum and she simply says no then the Minister would automatically abide by her wishes and refer it to court for determination?

On a side issue, with an absent/non interested parent who has shared parental responsibility it does pose the problem long term as legally I should be trying to contact her for input into high school choice & medical needs etc. I know in real life that the decision will be made anyway given all parents would know when their children were due to change schools etc. and if they were interested would be getting in contact prior.
This begs the question, should I seek to have our final orders amended as the boys get closer to being teens to remove the shared care (if mum has continued to stay in absentia)?

Cheers

 

[AllForHer]

There's a couple of ways you can look at it.

The only real things that require actual, formal consent from both parents is a change of name, and a passport application. Pretty much everything else that falls under shared parental responsibility can be done with only one parent's consent, including school enrolments and medical interventions.

What is required at each of these turns is a genuine effort to reach agreements jointly with the other parent. If a parent has made an effort to consult with the other parent about a major long-term issue, and the other parent has simply not engaged, the Court won't generally hold a parent in contravention of the orders for shared parental responsibility. Remember, nothing happens if you contravene unless the other parent files for contravention, and considering mum hasn't sought contravention orders for anything else, or indeed tried to follow the orders herself, how likely is mum to actually file for such an order?

My guess would be pretty unlikely.

But if you want to do it all the proper way, you could include an order for sole parental responsibility in your application. No idea how likely you are to get it - I would say that really depends on whether mum actually decides to participate.

If you did apply for sole parental responsibility, I wouldn't seek to change any other orders, like the allocated times for the kids to see mum and what not. It's good to show the Court that even though you want sole parental responsibility, you don't want to completely oust mum from the kids' lives.